People and Families

Not-for-profits, Charities and Social Purpose Organizations

Consent, Legal Capacity and Decision-Making

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Consent and Capacity

Who has the right to make legal decisions for themselves?

The law recognizes the right of every person to self-determination and generally requires that an individual provide consent in respect of any decision that will affect his or her rights. The validity of consent is in part dependent on whether the person providing consent has the required mental capacity to do so.

What is “capacity”?

Capacity describes a person’s ability make a decision.

How is “capacity” determined?

In Ontario, there is a clear legal regime that dictates who is capable of making decisions and who can make decisions for a person who is not capable of making decisions for themselves. With respect to determining whether someone is capable of managing property or consenting to personal care decisions, two criteria must be met:

    1. The person must have the ability to understand the information relevant to making the decision.[1] In other words, can he or she grasp and retain the factual information that
      is required in the decision-making process? Furthermore, is the cognitive ability to process and synthesize information about various options apparent?[2]
    2. The person must have the ability to appreciate the reasonably foreseeable consequences of a decision.[3] This involves the person’s ability to apply the applicable facts to him or herself. For example, an individual may understand the nature of a certain type of medical condition but may be unable to appreciate that he or she personally demonstrates its signs or symptoms. It is important to note that one’s ability to appreciate is not necessarily based on whether the decision is a good or a bad one; rather, an assessment is being made as to whether the decision appears to be “reasoned” as opposed to “reasonable.”

[1] Substitute Decisions Act, sections 6 and 45.

[2] Guidelines for Conducting Assessments of Capacity, Capacity Assessment Office, Ministry of the Attorney General, May 2005.

[3] Substitute Decisions Act, sections 6 and 45.

What types of decisions can I delegate?

In general, there are two broad areas of decision-making that need to be considered when working through the planning process.

The first deals with a person’s property. Decisions involving property may include signing tax and annual returns for the purposes of meeting obligations to the CRA, opening bank accounts or RDSPs, and otherwise dealing with financial institutions.

The second area of decision-making relates to personal care matters, which includes health care, nutrition, shelter, clothing, hygiene, and safety.

 

Substitute Decision Makers

What if I don’t have capacity to decide? Who can decide for me if I don’t have capacity?

PERSONAL CARE DECISIONS

Ontario law does provide for a substitute decision-maker to make certain personal care decisions for an individual who is deemed incapable of making those decisions for themselves. These decisions are restricted to the provision of consent for health care treatment, admission to long-term care homes, and personal assistance services under the Health Care Consent Act.[1] The person(s) who may act is the first available person(s) on the list having the right to act before those that follow. The ranking is as follows:

      1. Attorney for personal care;
      2. Legal guardian;
      3. A representative appointed by the Consent and Capacity Board;
      4. Spouse or partner (legally married or common law);
      5. A child or parent (including adopted children and parents, or someone legally authorized to act in the place of a parent, such as the Children’s Aid Society);
      6. A parent who has only a right of access (as opposed to a custodial parent);
      7. A brother or sister (including half siblings);
      8. Any other relative (i.e. related by blood, marriage, or adoption).

It is important to note that all persons within each class in the ranking have an equal right. For instance, if there is no attorney for personal care, legal guardian, representative, spouse, or partner in place, then all of the parents or children of the person will have equal decision-making authority. If they cannot agree, then the authority to make the decision will revert to the Office of the Public Guardian and Trustee.

DECISIONS RELATED TO PROPERTY

Families do not have the same kind of statutory decision-making authority when it comes to supporting individuals in making decisions with respect to their property.

In fact, the only way you can obtain legal decision-making authority over your loved one’s property (whether they are an adult or a child) is for him or her to sign a Power of Attorney for property in your favor, if they have the capacity to do so and are at least 18 years of age, or to obtain legal guardianship for the person through an application to the Court or the Office of the Public Guardian and Trustee. This is why careful estate planning is so important. A Henson Trust, for example, can be used to ensure that property is not left directly to your loved one who doesn’t have the capacity to manage it. In many cases, a Henson Trust can prevent capacity issues from interfering with the proper management of an inheritance or other property for the benefit of your loved one who has a disability.

While, technically speaking, establishing a Henson Trust cannot give someone else the authority to deal with your loved one’s ODSP, practically speaking, ODSP will typically accept the Trustee of a Henson Trust as ODSP Trustee if he or she simply completes an Appointment of Trustee Form (1046) with ODSP staff. Formal paperwork beyond this form, such as a Continuing Power of Attorney or guardianship order, is not required for ODSP purposes.

Likewise, if your loved one is the Beneficiary of an RDSP, his or her parent(s), spouse or common-law partner, are legally authorized to be the plan holder for that RDSP without the need for any formal paperwork being in place. Unfortunately, this authority does not extend to siblings or other support persons. The provincial government, however, is currently reviewing recommendations to make it easier for other family members and trusted individuals to support a Beneficiary as his or her plan holders.

As discussed above, the legislative requirements for making a binding Power of Attorney for Property or personal care is sometimes beyond the cognitive capacity of a person who has an intellectual disability. In such cases, guardianship may unfortunately be necessary to ensure the best interests of your loved one who has a disability are achieved. Guardianship applications are looked to only as an avenue of last resort, which need not be sought, nor ordered by a court, until all other avenues have been exhausted.

[1] Health Care Consent Act, 1996, c. 2, Sched. A.

Can I choose who gets to decide for me if I lose capacity?

Yes, if you become incapable, you can give Power of Attorney to a representative to make decisions related to property or personal care on your behalf. See Powers of Attorney below.

Can I be appointed to make decisions for a loved one who doesn’t have capacity?

Many parents are surprised to learn that they do not automatically have guardianship, custody, or any other legal rights over their own adult child. In fact, as a matter of law, every person is presumed to have capacity to make decisions for themselves. When it comes to personal care decisions, that presumption kicks in at age 16. For property decisions, the presumption arises at age 18.

The same principle applies with respect to custody; no person can have custody of another adult, even if they have lived with, cared for, and provided for that person for their entire lives. This presumption of independence and capacity to make decisions is designed to protect people’s right to live freely and govern their own affairs.

When it comes to the realities of everyday life, however, many family members are concerned about their loved ones who may require support to make various decisions. In Ontario, we do not currently have a supported decision-making framework recognized by the law. This means that if your loved one is deemed incapable of making a decision, the law does not provide for a family member or friend to support him or her in making that decision. Rather, the decision is placed in limbo pending someone with legal decision-making authority for your loved one stepping in, whether it be an attorney for property or personal care, legal guardian, or substitute decision-maker for personal care matters.

 

Powers of Attorney

What is a power of attorney for personal care?

A Power of Attorney for Personal Care (PAPC) is a document that allows you to authorize
one or more persons to make decisions on your behalf about matters related to your health care, hygiene, nutrition, safety, shelter, and clothing. The authority granted to your attorney(s) comes into effect only upon you being deemed incapable of making a decision in one or more of these areas of personal care.

What is a power of attorney for property?

A Continuing Power of Attorney for Property (CPAP) is a document that allows you to authorize one or more person(s) to make decisions on your behalf about matters related to your property. This may include real property, financial investments, bank accounts, etc.

If you find yourself in a situation where you cannot manage your own property (for instance, if you have a stroke, are in a coma, or have dementia) and you have not signed a Power of Attorney for Property, then no other person would have the authority to do deal with your property on your behalf. Many people are surprised to learn that, unlike decisions around personal care, the law does not recognize a spouse, child, or other next of kin as having authority to make decisions related to property.

Unfortunately, in the absence of a Power of Attorney, a costly and time-consuming guardianship application is frequently required to deal with the property of a person who does not have or has lost the capacity to manage his or her property. Whether or not it is necessary to do so usually depends on the value of the assets held independently in the person’s own name. Where the assets are minor and of a personal nature, guardianship usually need not be pursued. Where, however, real property or other substantial assets are at stake, guardianship is more likely to be necessary.

A CPAP can authorize your attorney to act immediately, or only upon a certain event taking place, such as if and when you lose capacity to act for yourself. It is also important to note that you can authorize your attorney(s) to manage all of your property or restrict this authority to a specific transaction involving a specific asset (i.e. a family cottage).

Who needs a Power of Attorney?

A Power of Attorney is needed when an individual becomes incapable to make decisions related to their property or personal care. However, a Power of Attorney must be given before the individual loses capacity. 

When should I sign a Power of Attorney?

You should sign a Power of Attorney when you want to appoint a representative to make decisions related to your property or personal are if and when you become incapable. You also have the option of giving Power of Attorney for property (also known as a “Continuing Power of Attorney for Property”) immediately, should you need help with decisions related to your property or finances right away.

What should be included in my Power of Attorney?

Your Power of Attorney should include the full legal name of the person whom you appoint as your representative. In the case of a Power of Attorney for property (also known as a “Continuing Power of Attorney for Property”), the document should include whether you give a Power of Attorney immediately or upon becoming incapable.

 

Living Wills – Health Care Advance Directives

What is a “Living Will”?

A Power of Attorney for Personal Care is also your opportunity to express your wishes for what treatment you will receive and when; such instructions are sometimes termed as a “Living Will.”

 

Guardianship

How do I obtain guardianship over my loved one?

THE GUARDIANSHIP PROCESS

(A) PROPERTY

When it comes to property decisions, the type of situation where guardianship may be necessary typically arises when your loved one does not have the capacity to manage property but inherits money, or is the Beneficiary of a pension, registered plan, or insurance policy in his or her own name. In other words, guardianship may be needed if your loved one receives a substantial sum of money or other property directly, rather than through a properly constituted absolute discretionary or Henson Trust. Where this occurs, not only will your loved one’s ODSP benefits likely be interrupted, but in the absence of a Continuing Power of Attorney for Property, no person will have the authority to deal with the funds to ensure that they are managed appropriately. These types of situations can be avoided with careful planning and communication amongst family members.

Sometimes, families may also experience pushback from the CRA or a financial institution when they seek to complete financial reporting or open accounts on behalf of a loved one who does not have the capacity to act for themselves. Sometimes these families are told by these institutions that they must get legal guardianship in order to move forward. In the vast majority of cases, these comments are made by persons who are uninformed and overzealous in their duties. In our experience, these issues can usually be managed with a simple phone call or letter to the institution; though sometimes, it is necessary for that phone call or letter to come from a lawyer who explains the law.

Where it appears that guardianship may be necessary, it can be pursued by applicants through a statutory process involving the Office of the Public Guardian and Trustee, or through the court-appointed process. Applications are quite involved, and therefore retaining an experienced lawyer to review your options and complete the necessary documentation is strongly recommended.

It is important to note that the law prohibits a finding of incapacity and the appointment of a guardian of property or of the person where there is some other alternative means of decision-making available.[1] There may be family members and friends within the individual’s personal network that could provide support in the decision-making process that would render a finding of incapacity and appointment of a guardian unnecessary.

Based on the above, it is our experience that very few families decide to pursue a guardianship application. In many cases, it is simply unnecessary. Further, the human rights implications on the person with a disability, as well as the time and significant costs associated with the process, simply act as a deterrent.

Our hope is that Ontario will follow other Canadian jurisdictions and shift toward a more progressive legal framework that recognizes trusted family members and friends within the context of supported decision-making. Such a framework, based on a piece of legislation called the Representation Agreement Act, has been in place in British Columbia since 1996.

(B) THE GUARDIANSHIP PROCESS FOR THE PERSON

Guardianship of the person is a less commonly pursued process, partly because the degree of capacity required to give a Power of Attorney for Personal Care is much lower (recall that it merely requires that your loved one understands whether the person they are appointing has a genuine concern for his or her welfare and appreciates that the person being appointed may need to make personal care decisions for him or her.) Guardianship of the person is also commonly rendered unnecessary due to the statutory substitute decision-making authorities granted to family members under the Health Care Consent Act (see above).

That being said, in some cases, no person identified in the Health Care Consent Act is willing or able to act. In other cases, a person more highly ranked on the list of substitute decision-makers is not the appropriate person. For instance, an estranged or self- interested spouse, parent, or child may seek to exercise decision-making authority granted by the Health Care Consent Act in a manner that a lower-ranking person may believe is inappropriate. In such cases, an application for guardianship of the person might be needed to effectively defeat the higher-ranking claims to decision-making authority.

Where it appears that guardianship of the person may be necessary, it can be pursued by applicants through the court-appointed process only. As with guardianship of property, applications are quite involved, and therefore retaining an experienced lawyer to review your options and complete the necessary documentation is strongly recommended.

[1] Substitute Decisions Act, 1992, S.O. 1992, c. 30, sections 22(3) and 55(2).

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